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On October 1, 2002, Dahil and Castro were charged in three (3) separate
Informations before the RTC.
Trial ensued and the prosecution presented PO2 Corpuz and SPO1 Licu as
witnesses.
The team proceeded to the target place at around 8:00 oclock in the
evening. Upon arriving, PO2 Corpuz together with the informant went to
the house of Dahil. When PO2 Corpuz and the informant were in front of
the house, they met Dahil and Castro. The informant then introduced PO2
Corpuz as the buyer of marijuana. Dahil asked PO2 Corpuz how much
would he be buying and the latter answered that he would buy P200.00
worth of marijuana. At this juncture, Dahil took out from his pocket six (6)
plastic sachets of marijuana and handed them to PO2 Corpuz. After
checking the items, PO2 Corpuz handed two (2) P100.00 marked bills to
Castro. Immediately thereafter, PO2 Cruz took off his cap to signal that
the sale had been consummated. The rest of the buy-bust team then
rushed to their location and arrested Castro and Dahil. PO2 Corpuz frisked
Dahil and recovered from his possession another five (5) plastic sachets
containing marijuana while SPO1 Licu searched the person of Castro and
confiscated from him one (1) brick of suspected marijuana.
Both Castro and Dahil, together with the confiscated drugs, were then
brought by the buy-bust team to the PDEA office. There, the seized items
were marked by PO2 Corpuz and SPO1Licu.
An inventory of the seized items was also prepared which was signed by
Kagawad Pamintuan. Thereafter, PO2 Corpuz brought the confiscated
drugs to the Philippine National Police (PNP) Crime Laboratory for
examination, which subsequently yielded positive results for marijuana.
In his defense, Dahil claimed that a tricycle driver came looking for him
after he had arrived home. He saw the tricycle driver with another man
already waiting for him. He was then asked by the unknown man whether
he knew a certain Buddy in their place. He answered that there were
many persons named Buddy. Suddenly, persons alighted from the
vehicles parked in front of his house and dragged him into one of the
vehicles. He was brought to Clark Air Base and was charged with illegal
selling and possession of marijuana.
For his part, Castro testified that he was watching a game of chess when
he was approached by some men who asked if he knew a certain Boy. He
then replied that he did not know the said person and then the men
ordered him to board a vehicle and brought him to Clark Air Base where
he was charged with illegal possession of marijuana.
RTC Ruling RTC found both accused liable. The RTC was convinced that
the prosecution was able to prove the case of selling and possession of
illegal drugs against the accused.
Such record of movements and custody of seized item shall include the
identity and signature of the person who held temporary custody of the
seized item, the date and time when such transfer of custody were made
in the course of safekeeping and use in court as evidence, and the final
disposition.
Second, there is doubt as to the identity of the person who prepared the
Inventory of Property Seized. According to the CA decision, it was
Sergeant dela Cruz who prepared the said document. PO2 Cruz on the
other hand, testified that it was their investigator who prepared the
document while SPO1 Licus testimony was that a certain SPO4
Jamisolamin was their investigator.
Third, there were conflicting claims on whether the seized items were
photographed in the presence of the accused or his/her representative or
counsel, a representative from the media and the DOJ, and any elected
public official. PO2 Corpuz testified that no pictures of the seized items
were taken while SPO1 Licu said that pictures of the accused were taken.
From the vague statements of the police officers, the Court doubts that
photographs of the alleged drugs were indeed taken.
custody because it will be the investigating officer who shall conduct the
proper investigation and prepare the necessary documents for the
developing criminal case. Certainly, the investigating officer must have
possession of the illegal drugs to properly prepare the required
documents.
First link: Marking of the Drugs Recovered from the Accused by the
Apprehending Officer.
"Marking" means the placing by the apprehending officer or the poseurbuyer of his/her initials and signature on the items seized. Marking after
seizure is the starting point in the custodial link. It is vital that the seized
contraband be immediately marked because succeeding handlers of the
specimens will use the markings as reference. The marking of the
evidence serves to separate the marked evidence from the corpus of all
other similar or related evidence from the time they are seized from the
accused until they are disposed of at the end of the criminal proceedings,
thus, preventing switching, planting or contamination of evidence.
In the present case, PO2 Corpuz and SPO1 Licu claimed that they had
placed their initials on the seized items. They, however, gave little
information on how they actually did the marking. It is clear, nonetheless,
that the marking was not immediately done at the place of seizure, and
the markings were only placed at the police station based on the
testimony of PO2 Corpuz.
Once the seized drugs arrive at the forensic laboratory, it will be the
laboratory technician who will test and verify the nature of the substance.
In this case, it was only during his cross-examination that PO2 Corpuz
provided some information on the delivery of the seized drugs to Camp
Olivas.
Fourth Link: Turnover of the Marked Illegal Drug Seized by the Forensic
Chemist to the Court.
Second Link: Turnover of the Seized Drugs by the Apprehending Officer
to the Investigating Officer.
Usually, the police officer who seizes the suspected substance turns it
over to a supervising officer, who will then send it by courier to the police
crime laboratory for testing. This is a necessary step in the chain of
The last link involves the submission of the seized drugs by the forensic
chemist to the court when presented as evidence in the criminal case. No
testimonial or documentary evidence was given whatsoever as to how
the drugs were kept while in the custody of the forensic chemist until it
was transferred to the court.
In view of all the foregoing, the Court can only conclude that,
indeed, there was no compliance with the procedural
requirements because of the inadequate physical inventory and
the lack of photography of the marijuana allegedly confiscated
from Dahil and Castro. No explanation was offered for the nonobservance of the rule. The prosecution miserably failed to prove that
the integrity and the evidentiary value of the seized items were
preserved. The four links required to establish the proper chain of
custody were breached with irregularity and lapses.
The Court cannot either agree with the CA that the evidentiary rule
involving the presumption of regularity of the performance of official
duties could apply in favor of the police officers. The regularity of the
performance of duty could not be properly presumed in favor of the
police officers because the records were replete with indicia of their
serious lapses. The presumption stands when no reason exists in the
records by which to doubt the regularity of the performance of official
duty. And even in that instance, the presumption of regularity will never
be stronger than the presumption of innocence in favor of the accused.
Otherwise, a mere rule of evidence will defeat the constitutionally
enshrined right of an accused to be presumed innocent.
on his responsibility to the other woman and their child. Irish changed her
cellphone number but Rustan somehow managed to get hold of it and
sent her text messages. Rustan used two cellphone numbers for sending
his messages. Irish replied to his text messages but it was to ask him to
leave her alone.
ABAD, J.:
The Indictment
The public prosecutor charged Rustan before the RTC of Baler, Aurora, of
violation of the Anti-Violence Against Women and Their Children Act (R.A.
9262).
Before Rustan got married, however, he got in touch with Irish and tried
to convince her to elope with him, saying that he did not love the woman
he was about to marry. Irish rejected the proposal and told Rustan to take
Irish sought the help of the vice mayor of Maria Aurora who referred her
to the police. Under police supervision, Irish asked Rustan to meet her
and he did. The waiting police officers intercepted and arrested him. They
searched him and seized his Sony Ericsson P900 cellphone and several
SIM cards.
Sometime later, Rustan got a text message from Irish, asking him to
meet her at Lorentess Resort as she needed his help in selling her
cellphone. When he arrived at the place, two police officers approached
him, seized his cellphone and the contents of his pockets, and brought
him to the police station.
The principal issue in this case is whether or not accused Rustan sent
Irish by cellphone message the picture with her face pasted on the body
of a nude woman, inflicting anguish, psychological distress, and
humiliation on her in violation of Section 5(h) of R.A. 9262.
Michelle Ang (Michelle), Rustans wife, testified that she was sure Irish
sent the six pictures. Michelle claims that she received the pictures and
hid the memory card that contained them because she was jealous and
angry. She did not want to see anything of Irish. But, while the woman in
the pictures posed in sexy clothing, in none did she appear naked.
Further, the face of the woman could not be seen. Irish denied that she
was the woman in those four pictures.
Here, Rustan claims that, being "romantically involved," implies that the
offender and the offended woman have or had sexual relations. According
to him, "romance" implies a sexual act. But it seems clear that the law
did not use in its provisions the colloquial verb "romance" that implies a
sexual act. It did not say that the offender must have "romanced" the
offended woman. Rather, it used the noun "romance" to describe a
couples relationship, i.e., "a love affair." R.A. 9262 provides in Section 3
that "violence against women x x x refers to any act or a series of acts
committed by any person against a woman x x x with whom the person
has or had a sexual or dating relationship." Clearly, the law itself
distinguishes a sexual relationship from a dating relationship.
Rustan also claims that since the relationship between Irish and him was
of the "on-and-off" variety (away-bati), their romance cannot be regarded
as having developed "over time and on a continuing basis." An "awaybati" or a fight-and-kiss thing between two lovers is a common
occurrence. Their taking place does not mean that the romantic relation
between the two should be deemed broken up during periods of
misunderstanding.
Two. Rustan argues that the one act of sending an offensive picture
should not be considered a form of harassment. He claims that such
would unduly ruin him personally and set a very dangerous precedent.
Section 3(a) of R.A. 9262 punishes "any act or series of acts" that
constitutes violence against women. This means that a single act of
harassment, which translates into violence, would be enough. The object
of the law is to protect women and children. Punishing only violence that
is repeatedly committed would license isolated ones.
Rustan alleges that todays women, like Irish, are so used to obscene
communications that her getting one could not possibly have produced
alarm in her or caused her substantial emotional or psychological
distress. He claims having previously exchanged obscene pictures with
Irish such that she was already desensitized by them.
But, firstly, the RTC which saw and heard Rustan and his wife give their
testimonies was not impressed with their claim that it was Irish who sent
the obscene pictures of herself. Michelle, Rustans wife, claimed that she
deleted several other pictures that Irish sent. But her testimony did not
make sense. She said that she did not know that Exhibits 2 to 7 had
remained saved after she deleted the pictures. Later, however, she said
that she did not have time to delete them. The RTC was correct in not
giving credence to her testimony.
Secondly, the naked woman on the picture, her legs spread open
and bearing Irishs head and face, was clearly an obscene picture
and, to Irish a revolting and offensive one. Surely, any woman like
Irish, who is not in the pornography trade, would be scandalized and
pained if she sees herself in such a picture. What makes it further
terrifying is that, as Irish testified, Rustan sent the picture with a threat to
post it in the internet for all to see. That must have given her a
nightmare.
Three. Rustan argues that, since he was arrested and certain items were
seized from him without any warrant, the evidence presented against him
should be deemed inadmissible.
The bulk of the evidence against him consisted in Irishs testimony that
she received the obscene picture and malicious text messages that the
senders cellphone numbers belonged to Rustan with whom she had been
previously in communication. Indeed, to prove that the cellphone
numbers belonged to Rustan, Irish and the police used such numbers to
summon him to come to Lorentess Resort and he did. Consequently, the
prosecution did not have to present the confiscated cellphone and SIM
cards to prove that Rustan sent those messages. Moreover, Rustan
admitted having sent the malicious text messages to Irish.
Four. Rustan claims that the obscene picture sent to Irish through a text
message constitutes an electronic document. Thus, it should be
authenticated by means of an electronic signature, as provided under
Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).
In conclusion, this Court finds that the prosecution has proved each and
every element of the crime charged beyond reasonable doubt.
On hearing the shots, PO2 Gregorio came around and fired at an armed
man. He saw another man run while firing his gun at PO2 Gregorio. The
latter returned fire but the men were able to take a taxi and escape. PO2
Gregorio radioed for help and for an ambulance. On returning to his
mobile car, he realized that accused Enojas, the taxi driver they had with
them had fled.
ABAD, J.:
Accused Enojas voluntarily went with the police officers and left
his taxi behind. On reaching the 7-11 convenience store, they stopped
and PO2 Pangilinan went down to relieve himself there. As he approached
the stores door, however, he came upon two suspected robbers and shot
it out with them. PO2 Pangilinan shot one suspect dead and hit the other
who still managed to escape. But someone fired at PO2 Pangilinan
causing his death.
PO3 Cambi and PO2 Rosarito testified that they monitored the
messages in accused Enojas mobile phone and, posing as Enojas,
communicated with the other accused. The police then conducted an
entrapment operation that resulted in the arrest of accused Santos and
Jalandoni. Subsequently, the police were also able to capture accused
Enojas and Gomez.
The Court of Appeals (CA) dismissed the appeal and affirmed in toto
the conviction of the accused. The CA, however, found the absence of
evident premeditation since the prosecution failed to prove that the
several accused planned the crime before committing it.
The defense points out that the prosecution failed to present direct
evidence that the accused Enojas, Gomez, Santos, or Jalandoni took part
in shooting PO2 Pangilinan dead. This may be true but the prosecution
could prove their liability by circumstantial evidence that meets the
evidentiary standard of proof beyond reasonable doubt.
The text messages to and from the mobile phone left at the scene by
accused Enojas provided strong leads on the participation and identities
of the accused. Indeed, the police caught them in an entrapment using
this knowledge.
This case involves a contest between two women both claiming to have
been validly married to the same man, now deceased.
During the existence of Tecla and Eustaquios union, they begot four (4)
children. Sometime in 1954, Eustaquio left his family and his
whereabouts was not known. In 1958, Tecla and her children were
informed that Eustaquio was in Davao City living with another woman
Sayson who later died in 1977 without any issue.
In 1979, Tecla learned that her husband Eustaquio got married to another
woman by the name of Peregrina, which marriage she claims must be
declared null and void for being bigamous an action she sought to
protect the rights of her children over the properties acquired by
Eustaquio.
life as a wife and how she took care of Eustaquio when he already had
poor health, as well as her knowledge that Tecla is not the legal wife, but
was once a common law wife of Eustaquio. Peregrina likewise set forth
documentary evidence to substantiate her allegations and to prove her
claim for damages, to wit:
Tecla
presented
consisting of:
testimonial
and
documentary
evidence
to
Peregrina now questions the said ruling, raises the following legal issues:
1.
Our Ruling
Essentially, the question before us is whether or not the
evidence presented during the trial proves the existence of the
marriage of Tecla to Eustaquio.
The CA, on the other hand, concluded that there was a presumption of
lawful marriage between Tecla and Eustaquio as they deported
themselves as husband and wife and begot four (4) children. Such
presumption, supported by documentary evidence. consisting of the
same Certifications disregarded by the trial court, as well as the
testimonial evidence especially that of Adelina Avenido-Ceno, created,
according to the CA, sufficient proof of the fact of marriage. Contrary to
the trial courts ruling, the CA found that its appreciation of the evidence
presented by Tecla is well in accord with Section 5, Rule 130 of the Rules
of Court.
It should be stressed that the due execution and the loss of the marriage
contract, both constituting the conditio sine qua non for the introduction
of secondary evidence of its contents, were shown by the very evidence
they have disregarded. They have thus confused the evidence to show
due execution and loss as "secondary" evidence of the marriage. In
Hernaez v. Mcgrath, the Court clarified this misconception thus:
This
ALL
Agreement
MEN
made
and
BY
entered
THESE
into
by
PRESENTS:
and
between:
Kimwa
entered
into
the
Agreement. 24
Spouses Paras added that within a few days, Kimwa was able to extract
and haul 10,000 cubic meters of aggregates. However, after extracting
and hauling this quantity, Kimwa allegedly transferred to the concession
area of a certain Mrs. Remedios dela Torre in violation of their Agreement.
They then addressed demand letters to Kimwa. As these went unheeded,
Spouses
Paras
filed
their
Complaint. 25
In its Answer,26 Kimwa alleged that it never committed to obtain 40,000
cubic meters of aggregates from Lucia. It argued that the controversial
quantity of 40,000 cubic meters represented only an upper limit or the
maximum quantity that it could haul. 27 It likewise claimed that it neither
made any commitment to haul 40,000 cubic meters of aggregates before
May 15, 1995 nor represented that the hauling of this quantity could be
completed in two to three months.28 It denied that the hauling of 10,000
cubic meters of aggregates was completed in a matter of days and
countered that it took weeks to do so. It also denied transferring to the
concession area of a certain Mrs. Remedios dela Torre. 29
Kimwa asserted that the Agreement articulated the parties' true intent
that 40,000 cubic meters was a maximum limit and that May 15, 1995
was never set as a deadline. Invoking the Parol Evidence Rule, it insisted
that Spouses Paras were barred from introducing evidence which would
show
that
the
parties
had
agreed
differently. 30
On May 16, 2001, the Regional Trial Court rendered the Decision in favor
of Spouses Paras. The trial court noted that the Agreement stipulated
that the allotted aggregates were set aside exclusively for Kimwa. It
reasoned that it was contrary to human experience for Kimwa to have
entered into an Agreement with Lucia without verifying the latter's
authority as a concessionaire. 31 Considering that the Special Permit 32
granted to Lucia (petitioners' Exhibit "A" before the trial court) clearly
indicated that her authority was good for only six (6) months from
November 14, 1994, the trial court noted that Kimwa must have been
aware that the 40,000 cubic meters of aggregates allotted to it must
necessarily be hauled by May 15, 1995. As it failed to do so, it was liable
to Spouses Paras for the total sum of P720,000.00, the value of the
30,000 cubic-meters of aggregates that Kimwa did not haul, in addition to
attorney's
fees
and
costs
of
suit. 33
On appeal, the Court of Appeals reversed the Regional Trial Court's
Decision. It faulted the trial court for basing its findings on evidence
presented which were supposedly in violation of the Parol Evidence Rule.
It noted that the Agreement was clear that Kimwa was under no
obligation to haul 40,000 cubic meters of aggregates by May 15, 1995. 34
this
Petition
was
filed.
Here, the Court of Appeals found fault in the Regional Trial Court for
basing its findings "on the basis of evidence presented in violation of the
parol evidence rule."45 It proceeded to fault petitioners Spouses Paras for
showing "no proof of [respondent Kimwa's] obligation." 46 Then, it stated
that "[t]he stipulations in the agreement between the parties leave no
room
for
interpretation."47
The
Court
of
Appeals
is
in
serious
error.
At the onset, two (2) flaws in the the Court of Appeals' reasoning must be
emphasized. First, it is inconsistent to say, on one hand, that the trial
court erred on the basis of "evidence presented" 48 (albeit supposedly in
violation of the Parol Evidence Rule), and, on the other, that petitioners
Spouses Paras showed "no proof."49 Second, without even accounting for
the exceptions provided by Rule 130, Section 9, the Court of Appeals
immediately concluded that whatever evidence petitioners Spouses Paras
presented
was
in
violation
of
the
Parol
Evidence
Rule.
Contrary to the Court of Appeal's conclusion, petitioners Spouses Paras
pleaded in the Complaint they filed before the trial court a mistake or
imperfection in the Agreement, as well as the Agreement's failure to
express the true intent of the parties. Further, respondent Kimwa,
through its Answer, also responded to petitioners Spouses Paras' pleading
of these issues. This is, thus, an exceptional case allowing admission of
parol
evidence.
Paragraphs 6 to 10 of petitioners' Complaint read:
6. Sensing that the buyers-contractqrs and haulers alike could easily
consumed [sic] the deposits defendant proposed to the plaintiffwife that it be assured of a forty thousand (40,000) cubic meter
[sic];
7. Plaintiff countered that the area is scheduled to be rechanneled
on 15 May 1995 and by that time she will be prohibited to sell the
aggregates;
8. She further told the defendant that she would be willing to enter
into a contract provided the forty thousand cubic meter [sic] will
be withdrawn or completely extracted and hauled before 15 May
1995, the scheduled rechanneling:
9. Defendant assured her that it will take them only two to three
months to haul completely the desired volume as defendant has
all the trucks needed;
10. Convinced of the assurances, plaintiff-wife and the defendant
entered into a contract for the supply of the aggregates
sometime on 6 December 1994 or thereabouts, at a cost of Two
Hundred Forty (P240.00) Pesos per truckload[.]50
This permit which is valid for six (6) months from the date hereof is
revocable anytime upon violation of any of the foregoing conditions or in
the
interest
of
public
peace
and
order.
The Special Permit's condition that a total of only about 40,000 cubic
meters of aggregates may be extracted by petitioner Lucia Paras from
the permitted area lends credence to the position that the aggregates
"allotted" to respondent Kimwa was in consideration of its corresponding
commitment to haul all 40,000 cubic meters. This is so, especially in light
of the Agreement's own statement that "the said Aggregates is for the
exclusive use of [respondent Kimwa.]"57 By allotting the entire 40,000
cubic meters, petitioner Lucia Paras bound her entire business to
respondent Kimwa. Rational human behavior dictates that she must have
done so with the corresponding assurances from it. It would have been
irrational, if not ridiculous, of her to oblige herself to make this allotment
without respondent Kimwa's concomitant undertaking that it would
obtain
the
entire
amount
allotted.
Likewise, the condition that the Special Permit shall be valid for only six
(6) months from November 14, 1994 lends credence to petitioners
Spouses Paras' assertion that, in entering into the Agreement with
respondent Kimwa, petitioner Lucia Paras did so because of respondent
Kimwa's promise that hauling can be completed by May 15, 1995. Bound
as she was by the Special Permit, petitioner Lucia Paras needed to make
it eminently clear to any party she was transacting with that she could
supply aggregates only up to May 15, 1995 and that the other party's
hauling must be completed by May 15, 1995. She was merely acting with
due diligence, for otherwise, any contract she would enter into would be
negated; any commitment she would make beyond May 15, 1995 would
make her guilty of misrepresentation, and any prospective income for her
would
be
rendered
illusory.
Our evidentiary rules impel us to proceed from the position (unless
convincingly shown otherwise) that individuals act as rational human
beings, i.e, "[t]hat a person takes ordinary care of his concerns[.]" 58 This
basic evidentiary stance, taken with the- supporting evidence petitioners
Spouses Paras adduced, respondent Kimwa's awareness of the conditions
under which petitioner Lucia Paras was bound, and the Agreement's own
text specifying exclusive allotment for respondent Kimwa, supports
petitioners Spouses Paras' position that respondent Kimwa was obliged to
being impleaded, the issue of whether ATI is solely responsible for the
damages could not be determined with finality by this Honorable Court.
ATI certainly deserves to be heard on the issue but it could not defend
itself because it was not impleaded before this Court. Perhaps, this is the
reason why [ESLI] left out ATI in this case so that it could not rebut while
petitioner puts it at fault.45
ESLI in its Reply46 put the blame for the non-exclusion of ATI to BPI/MS
and Mitsui:
[BPI/MS and Mitsui] claim that herein [ESLI] did not implead [ATI] as a
party respondent in the Petition for Review on Certiorari it had filed.
Herein Petitioner submits that it is not the obligation of [ESLI] to implead
ATI as the same isalready the look out of [BPI/MS and Mitsui]. If [BPI/MS
and Mitsui] believe that ATI should be made liable, they should have filed
a Motion for Reconsideration with the Honorable Court of Appeals. The
fact that [BPI/MS and Mitsui] did not even lift a finger to question the
decision of the Honorable Court of Appeals goes to show that [BPI/MS and
Mitsui] are not interested as to whether or not ATI is indeed liable.47
It is clear from the exchange that both [ESLI] and [BPI/MS and Mitsui] are
aware of the non-inclusion of ATI, the arrastre operator, as a party to this
review of the Decision of the Court of Appeals. By blaming each other for
the exclusion of ATI, [ESLI] and [BPI/MS and Mitsui] impliedly agree that
the absolution of ATI from liability isfinal and beyond review. Clearly,
[ESLI] is the consequential loser. It alone must bear the proven liability for
the loss of the shipment. It cannot shift the blame to ATI, the
arrastreoperator, which has been cleared by the Court of Appeals. Neither
can it argue that the consignee should bear the loss.
Thus confined, we go to the merits of the arguments of ESLI.
First Issue: Liability of ESLI
ESLI bases of its non-liability onthe survey reports prepared by BPI/MS
and Mitsuis witness Manuel which found that the cause of damage was
the rough handling on the shipment by the stevedores of ATI during the
discharging operations.48 However, Manuel does not absolve ESLI of
liability. The witness in fact includes ESLI in the findings of negligence.
Paragraphs 3 and 11 of the affidavit of witness Manuel attribute fault to
both ESLI and ATI.
3. The vessel M.V. "EASTERN VENUS" V 22-S carrying the said shipment
of 22 coils of various steel sheets arrived at the port of Manila and
discharged the said shipment on or about 11 February 2004 to the
arrastre operator [ATI]. I personally noticed that the 22 coils were roughly
handled during their discharging from the vessel to the pier of [ATI] and
even during the loading operations of these coils from the pier to the
trucks that will transport the coils to the consigneess warehouse. During
the aforesaid operations, the employees and forklift operators of [ESLI]
and [ATI] were very negligent in the handling of the subject cargoes.
xxxx
11. The vessel M.V. "EASTERN VENUS" V 25-S carrying the said shipment
of 50 coils of various steel sheets arrived at the port of Manila and
no evidence that the shipper had presented to the carrier in writing prior
to the loading of the actual value of the cargo, and, that there was a no
payment of corresponding freight.65 Finally, despite the fact that ESLI
admits the existence of the invoices, it denies any knowledge either of
the value declared or of any information contained therein.66
According to the New Civil Code, the law of the country to which the
goods are to be transported shall govern the liability of the common
carrier for their loss, destruction or deterioration.67 The Code takes
precedence as the primary law over the rights and obligations of common
carriers with the Code of Commerce and COGSA applying suppletorily.68
The New Civil Code provides that a stipulation limiting a common
carriers liability to the value of the goods appearing in the bill of lading is
binding, unless the shipper or owner declares a greater value.69 In
addition, a contract fixing the sum that may be recovered by the owner
or shipper for the loss, destruction, or deterioration of the goods is valid,
if it is reasonable and just under the circumstances, and has been fairly
and freely agreed upon.70
COGSA, on the other hand, provides under Section 4, Subsection 5 that
an amount recoverable in case ofloss or damage shall not exceed
US$500.00 per package or per customary freight unless the nature and
value of such goods have been declared by the shipper before shipment
and inserted in the bill of lading.
In line with these maritime law provisions, paragraph 13 of bills of lading
issued by ESLI to the shipper specifically provides a similar restriction:
The value of the goods, in calculating and adjusting any claims for which
the Carrier may be liable shall, to avoid uncertainties and difficulties in
fixing value, be deemed to the invoice value of the goods plus ocean
freight and insurance, if paid, Irrespective of whether any other value is
greater or less, and any partial loss or damage shall be adjusted pro
rataon the basis of such value; provided, however, that neither the
Carrier nor the ship shall in any event be or become liable for any loss,
non-delivery or misdelivery of or damage or delay to, or in connection
with the custody or transportation of the goods in an amount exceeding
$500.00 per package lawful money of the United States, or in case of
goods not shipped in packages, per customary freight unit, unless the
nature of the goods and a valuation higher than $500.00 is declared in
writing by the shipper on delivery to the Carrier and inserted in the bill of
lading and extra freight is paid therein as required by applicable tariffs to
obtain the benefit of such higher valuation. In which case even if the
actual value of the goods per package orunit exceeds such declared
value, the value shall nevertheless be deemed to be the declared value
and any Carriers liability shall not exceed such declared value and any
partial loss or damage shall be adjusted pro-rata on the basis thereof. The
Carrier shall not be liable for any loss or profit or any consequential or
special damage and shall have the option of replacing any lost goods and
replacing o reconditioning any damage goods. No oral declaration or
shipper in fact paid the freight charges based on the value of the goods.
In Adams Express Company v. Croninger,76 it was said: "Neither is it
conformable to plain principles of justice that a shipper may understate
the value of his property for the purpose of reducing the rate, and then
recover a larger value in case of loss. Nor does a limitation based upon
an agreed value for the purpose of adjusting the rate conflict with any
sound principle of public policy." Conversely, but for the same reason, it is
unjust for ESLI to invoke the limitation when it is informed that the
shipper paid the freight charges corresponding to the value of the goods.
Also, ESLI admitted the existence and due execution of the Bills of Lading
and the Invoice containing the nature and value of the goods on the
second shipment. As written in the Pre-Trial Order,77 the parties,
including ESLI, admitted the existence and due execution of the two Bills
of Lading78 together with the Invoice on the second shipment with Nos.
KJGE-04-1327-NT/KE279 dated 12 May 2004. On the first shipment, ESLI
admitted the existence of the Invoice with Nos. KJGE-031228-NT/KE380
dated 2 February 2004.
The effect of admission of the genuineness and due execution of a
document means that the party whose signature it bears admits that he
voluntarily signed the document or itwas signed by another for him and
with his authority.81
A review of the bill of ladings and invoice on the second shipment
indicates that the shipper declared the nature and value of the goods
with the corresponding payment of the freight on the bills of lading.
Further, under the caption "description of packages and goods," it states
that the description of the goods to be transported as "various steel
sheet in coil" with a gross weight of 383,532 kilograms (89.510 M3).On
the other hand, the amount of the goods is referred in the invoice, the
due execution and genuineness of which has already been admitted by
ESLI, is US$186,906.35 as freight on board with payment of ocean freight
of US$32,736.06 and insurance premium of US$1,813.17. From the
foregoing, we rule that the non-limitation of liability applies in the present
case.
We likewise accord the same binding effect on the contents of the invoice
on the first shipment.1wphi1 ESLI contends that what was admitted and
written on the pre-trial order was only the existence of the first shipment
invoice but not its contents and due execution. It invokes admission of
existence but renounces any knowledge of the contents written on it.82
Judicial admissions are legally binding on the party making the
admissions. Pre-trial admission in civil cases is one of the instances of
judicial admissions explicitly provided for under Section 7,Rule 18 of the
Rules of Court, which mandates that the contents of the pre-trial order
shall control the subsequent course of the action, thereby, defining and
limiting the issues to be tried. In Bayas v. Sandiganbayan,83 this Court
emphasized that:
Once the stipulations are reduced into writing and signed by the parties
and their counsels, they become binding on the parties who made them.
Republic
of
the
Philippines
SUPREME
COURT
Manila
THIRD DIVISION
G.R. No. 193225
February 9, 2015
BBB,*
Petitioner,
vs.
AAA,* Respondent.
RESOLUTION
REYES, J.:
Petitioner BBB is now before this Court with a Petition for Review on
Certiorari1 under Rule 45 of the Rules of Civil Procedure to assail the
Decision2 dated November 6, 2009 and Resolution3 dated August 3,
2010 of the Court of Appeals (CA) in CA-G.R. CV No. 89581, which
affirmed with modification the issuance against him on August 14, 2007
of a Permanent Protection Order (PPO)4 by the Regional Trial Court (RTC)
of Pasig City, Branch 162, in favor of his wife, herein respondent AAA.
Antecedent Facts
The CA aptly summarized as follows the facts of the case until the RTCs
issuance of the PPO against BBB:
Both [BBB] and [AAA] allege that they first met in 1991 but started to
date seriously only in 1996. [AAA] was then a medical student and was
raising her first child borne from a previous relationship, a boy named
[CCC], with the help of her parents.
During the relationship with [BBB], [AAA] bore two more children namely,
[DDD] (born on December 11, 1997) and [EEE] (born on October 19,
2000).
To legalize their relationship, [BBB] and [AAA] married in civil rights on
October 10, 2002 and thereafter, the birth certificates of the children,
including [CCCs], was amended to change their civil status to
legitimated by virtue of the said marriage.
The relationship, both admit, was far from ideal and has had its share of
happy moments and heated arguments. The two however have
contradicting statements as to the cause of their present situation.
[BBB] alleges that [AAAs] irrational jealousy has caused their frequent
arguments. According to [BBB], [AAA] has been suspicious of [BBB] and
his relationship with his female co-workers, which [BBB] alleges, contrary
to [AAAs] suspicion, are purely professional. According to [BBB], because
of their repeated fights, he was forced to leave the family home to
prevent the brewing animosity between him and his wife. Soon after
[BBB] left, [AAA] herself decided to leave the family home and brought
the children with her, which made it difficult for [BBB] to see their kids
regularly. This has also caused the family expense to double, making it
even more difficult for [BBB] to fulfill his financial obligations.
[AAA], on the other hand, alleges that their heated arguments were often
due to [BBBs] incessant womanizing. When confronted about it, [BBB],
instead of denying the same, would even curse [AAA].
The breaking point for [AAA] came when, [BBBs] alleged mistress, a
woman by the name of [FFF], insulted and humiliated [AAA] in public, in
the presence of [BBB] himself, who, according to [AAA], did nothing to
stop the same. Extremely hurt, [AAA] decided to leave the conjugal home
with the children and lived temporarily at a friends house. She however
went back to the conjugal home with [DDD] and [EEE] after some time,
leaving her son [CCC] at her friends house.
What made matters worse, according to [AAA], was the apparent biases
of [BBB] in favor of [DDD] and [EEE]. That despite his promise to treat
[CCC] as his own, [BBB] would still treat the latter differently from the two
kids, putting [CCC] at a disadvantage. [AAA], cites as example the
instances when, [BBB] would buy food and toys for [DDD] and [EEE] only,
buying nothing for [CCC].
While living separately from [BBB], [AAA] discovered that [BBB] was not
paying the rentals due on the condominium unit they were occupying,
forcing [AAA] to move out. [AAA] was likewise compelled to find work to
support the family, after [BBB] has started to be remiss in his financial
obligations to the family. According to [AAA], the amounts given by [BBB]
were not sufficient to cover the family expenses, forcing her to request
for loans from friends.
[AAA] likewise feels threatened after discovering [that BBB] was stalking
her and/or their children. [AAA] alleges that she found out that [BBB] has
sought the help of one [GGG], a friend of [BBB] who lives within the same
compound where [AAA] lives, to go through the guards logbook to
monitor their every move, i.e., who visits them, what time [AAA] leaves
and returns back home, etc.
Citing the foregoing as constituting economic and psychological abuse,
[AAA] filed an application for the issuance of a Temporary Protection
Order with a request to make the same permanent after due hearing,
before the Regional Trial Court of Pasig City.
Finding good ground in [AAAs] application, the court a quo issued a
Temporary Protection Order (TPO). The TPO was thereafter, made
permanent by virtue of a Decision of the RTC dated August [14, 2007],
the dispositive portion of which orders:
"x x x x
a. Prohibiting [BBB], directly and indirectly, from stalking, harassing,
annoying, or otherwise verbally abusing [AAA], directly or indirectly, to
refrain from insulting her, cursing her and shouting invectives at her;
b. Prohibiting [BBB] from committing or threatening to commit any act
that may cause mental and emotional anguish to [AAA], i.e. publicly
displaying her extramarital relations with his mistress [FFF] and anyone
else for that matter;
c. Prohibiting [BBB] from exposing the minor children to immoral and
illicit environment, specifically prohibiting him to allow her (sic)
mistress[FFF] and anyone else to be with them in instances where he
would be allowed by this Court to see their children;
d. Allowing [BBB] ALONE to see and visit his children once a month (for a
total of 12 visits per year) at the latters residence for a maximum period
of 2 years [sic]each visit, subject to further orders from this Court. For
this purpose, [BBBs every visit] shall be accompanied by the Court
Sheriff, who shall coordinate with [AAA] as to the availability of time and
date of children for such visit, at the expense of [BBB]. For every visit,
the Court Sheriff is directed to submit his report within 5 days from the
date [BBB] visited the children;
e. Directing [BBB] to allow [AAA] to continue to have lawful use and
possession of the motor vehicle more particularly described as follows:
One (1) Hyundai Starex Van
1997 Model
Plate Number: WJP 902
Chassis Number:
Serial Number KMJWH7HPXU158443
f. Granting [AAA] permanent sole custody over their common children
until further orders from this Court;
g. Ordering [BBB] to provide support in the amount of Php 62,918.97 per
month (not Php 81,650.00 being prayed by [AAA]) to [AAA] as monthly
support, inclusive of educational expenses, groceries, medicines, medical
bills, and insurance premiums, starting from the month of January 2007
to be given within the first five (5) days of the month through the Court
Sheriff, who shall coordinate with [AAA] in receiving such support;
h. Requiring [BBB] to stay away from the offended party and any
designated family or household member at a distance of 100 meters;
i. Requiring [BBB] to stay away from the residence, school, place of
employment or any specified place frequented regularly by the offended
party and children and any designated family or household member;
j. Ordering [BBB] to post bond of Php 300,000.00 to keep peace pursuant
to Section 23 of RA 9262 with the undertaking that [BBB] will not commit
the violence sought to be prevented and that in case such violence is
committed[,] he will pay the amount determined by the Court in its
judgment;
k. Ordering [BBB] to pay the sum of Php 100,000.00 (not Php 200,000.00
being prayed by [AAA]) representing both reasonable attorneys fees and
cost of litigation, including cost of suit.
x x x x."5
Ruling of the CA
BBB filed before the CA an appeal6 to challenge the RTC Decision dated
August 14, 2007.1wphi1 BBB alleged that the RTCs (a) issuance of the
PPO against him, (b) award to AAA of the sole custody over their children,
(c) directives for him to pay attorneys fees and costs of litigation and to
post an excessive amount of bond, and (d) declaration that he had an
abusive character lack factual bases.
On November 6, 2009, the CA rendered the assailed decision affirming
the factual findings and dispositions of the RTC, but ordering the remand
of the case for the latter to determine in the proper proceedings who
shall be awarded custody of the children. Like the RTC, the CA found that
under the provisions of Republic Act (R.A.) No. 9262,7 BBB had subjected
AAA and their children to psychological, emotional and economic abuses.
BBB displayed acts of marital infidelity which exposed AAA to public
ridicule causing her emotional and psychological distress. While BBB
alleged that FFF was only a professional colleague, he continued to have
public appearances with her which did not help to dispel AAAs
accusation that the two had an extra-marital relation. Further, BBB
verbally abused AAA either in person or through text messages. The CA
likewise did not favorably consider BBBs claim that he cannot provide
financial support to AAA and the children in the amount required by the
RTC as his income merely depended on contractual hosting and events
management assignments. The CA emphasized that AAA was in the
position to know the sources of BBBs income. Citing Section 288 of R.A.
No. 9262 and Article 2139 of the Family Code, the CA, however, ordered
the RTC to determine who shall be entitled to exercise custody over the
children, who at that time were already older than seven years of age.
The CA denied BBBs Motion for Partial Reconsideration10 by way of the
Resolution11 dated August 3, 2010 which is likewise assailed in the
instant petition.
Issues
Undaunted, BBB now comes before this Court raising the following issues:
I
WHETHER OR NOT THE [CA]COMMITTED ERROR IN AFFIRMING THE RTCS
DECISION TO MAKE THE [TEMPORARY RESTRAINING ORDER (TPO)]
PERMANENT.
II
WHETHER OR NOT THE [CA]COMMITTED ERROR IN AFFIRMING THE RTCS
AWARD OF ATTORNEYS FEES AND COST OF LITIGATION IN FAVOR OF
[AAA].
III
WHETHER OR NOT THE [CA]COMMITTED ERROR IN AFFIRMING THE RTCS
ORDER REQUIRING [BBB] TO POST AN EXCESSIVE AMOUNTOF BOND TO
KEEP THE PEACE.12
IV
WHETHER OR NOT THE CA AND THE RTC CORRECTLY ADMITTED INTO
EVIDENCETHE UNAUTHENTICATED TEXT MESSAGES ADDUCED BY AAA.13
V
WHETHER OR NOT THE AWARD OF SUPPORT SHOULD BE DELETED AS
THE SPOUSES COMMON BIOLOGICAL CHILDREN, DDD AND EEE, ARE
ALREADY UNDER BBBS ACTUAL CARE AND CUSTODY SINCE AUGUST
2010 WHEN AAA LEFT TO WORK AS A NURSE IN THE UNITED STATES.14
In support of the instant petition, BBB merely reiterates his factual claims
in the proceedings below relative to his financial position and AAAs
supposedly baseless accusations and demands from him. In addition, he
posits that the text messages offered by AAA as evidence were
unauthenticated; hence, doubt exists as to their admissibility. Further, he
points out that due to the current whereabouts and circumstances of the
parties, the PPO issued against him is rendered moot. He now has actual
care and custody of DDD and EEE, while CCC, who is not his biological
son, resides in a college dormitory. BBB and AAA barely get in touch with
each other except when the latter initiates the same.
In her Comment15 to the petition, AAA counters that BBB erroneously
raises factual issues which are subjects beyond the contemplation of a
petition filed under Rule 45 of the Rules of Civil Procedure. Further, BBB
continuously violates the PPO, which under the provisions of R.A. No.
9262, is supposed to be immediately executory upon its issuance by the
RTC. AAA claims that BBB still verbally abuses her. BBB has not posted
the 300,000.00 bond required from him. He likewise has not paid the
attorneys fees and costs of litigation awarded to AAA. He does not
provide support for CCC, who, in the eyes of the law, is also among his
legitimated children. AAA further alleges that in2010, she left DDD and
EEE under the care of BBB only because the circumstances then
obtaining forced her to do so. Three years had then lapsed from the time
she filed an application for a protection order and still, no execution of
the PPO ensued. She could not depend for financial support from BBB.
She was thus left with no choice but to yield custody over DDD and EEE
even if the set-up exposed the children to BBBs illicit affairs. AAA points
out that since their children are all older than seven years of age, they
are already capable of choosing for themselves whom they want to
exercise custody over them.
Pending the Courts deliberation of the instant case, BBB filed a
Manifestation and Motion to Render Judgment Based on a Memorandum
of Agreement (MOA).16 BBB alleges that on July 29, 2013, he and AAA
had entered into a compromise anent the custody, exercise of parental
authority over, and support of DDD and EEE.17
AAAs counsel, Atty. Shielah Elbinias-Uyboco (Atty. Uyboco), filed a
Comment to the MOA18 pointing out that AAA signed the MOA while
emotionally distressed and sans the formers advice and guidance. Atty.
Uyboco likewise emphasizes that BBBs illicit relationship with FFF
continues in violation of the PPO issued by the RTC.
In BBBs Reply,19 he counters that AAA should be presumed to have
acted with due care and full knowledge of the contents of the MOA which
she signed. Further, BBBs alleged involvement with FFF is an issue which
need not be resolved in a judgment based on compromise.
Disquisition of the Court
The instant petition is not a proper subject of a compromise agreement.
The Court cannot take the simplest course of finally writing finis to the
instant petition by rendering a judgment merely based on compromise as
prayed for by BBB due to reasons discussed below.
Alleging psychological violence and economic abuse, AAA anchored her
application for the issuance of a TPO and a PPO on the basis of the
provisions of R.A. No. 9262. In the instant petition, what is essentially
being assailed is the PPO issued by the RTC and which was affirmed by
the CA. The rules, however, intend that cases filed under the provisions of
R.A. No. 9262 be not subjects of compromise agreements.
It bears stressing that Section 23(d) of A.M. No. 04-10-11-SC20 explicitly
prohibits compromise on any act constituting the crime of violence
against women. Thus, in Garcia v. Drilon,21 the Court declared that:
Violence, however, is not a subject for compromise. A process which
involves parties mediating the issue of violence implies that the victim is
somehow at fault. x x x.22 (Emphasis deleted) AM No. 10-4-16-SC,23 on
the other hand, directs the referral to mediation of all issues under the
Family Code and other laws in relation to support, custody, visitation,
property relations and guardianship of minor children, excepting
therefrom those covered by R.A. No. 9262.
While AAA filed her application for a TPO and a PPO as an independent
action and not as an incidental relief prayed for in a criminal suit, the
instant petition cannot be taken outside the ambit of cases falling under
the provisions of R.A. No. 9262. Perforce, the prohibition against
subjecting the instant petition to compromise applies.
The courts a quo committed no error in issuing a PPO against BBB.
Anent the main issues raised in the instant petition, the Court finds no
error in the CAs ruling that the RTC properly issued a PPO against BBB
and that a remanding of the case to the trial court is necessary to
determine who shall exercise custody over CCC, DDD and EEE. However,
the choices of the children as with whom they would prefer to stay would
alter the effects of the PPO. Hence, this Court affirms the herein assailed
PPO except items (d), (f), (g), (h) and (i)24 thereof relative to who shall be
granted custody over the three children, how the spouses shall exercise
visitation rights, and the amount and manner of providing financial
support, which are matters the RTC is now directed to determine with
dispatch.
The Court notes BBBs manifestation that he and AAA had arrived at an
amicable settlement as regards the issues of custody, exercise of
parental authority over, and support of DDD and EEE. While these
matters can be lawful subjects of compromise, AAAs vacillation, as
expressed by her counsel, compels the Court to exercise prudence by
directing the RTC to resolve with finality the aforesaid issues. The parties
are, however, not precluded from entering into a compromise as regards
the aforesaid issues, but the Court now requires the RTCs direct
supervision lest the parties muddle the issues anew and fail to put an end
to their bickering.
No grounds exist which compel this Court to resolve the first three issues
raised by BBB since they are merely factual in character.
In Padalhin v. Lavia,25 the Court declared that:
Primarily, Section 1, Rule 45 of the Rules of Court categorically states that
the petition filed shall raise only questions of law, which must be
distinctly set forth. A question of law arises when there is doubt as to
what the law is on a certain state of facts, while there is a question of fact
when the doubt arises as to the truth or falsity of the alleged facts. For a
several months leading up to their separation, and up to the time that the
instant case has been filed, continuously endured the extreme mood
swings, malicious accusations, haranguing, curses, insults, and even
violence from [AAA].31 (Emphasis and underscoring in the original and
italics ours)
Further, in the instant petition, BBB repleads that:
[I]t is utterly apparent that the alleged messages from [BBB] are only
messages that are in response to an ongoing verbal or virtual tussle
between the parties.32
In the above-quoted portions of the pleadings, BBB attempted to justify
why he sent the messages to AAA. However, in doing so, he, in effect,
admitted authorship of the messages which AAA adduced as evidence. It
is likewise noted that BBB did not deny ownership of the cellphone
number from which the text messages were sent.
Hence, while at first glance, it would seem that the issue of admissibility
of the text messages requires an interpretation of the rules of evidence,
this Court does not find the same to be necessary. While BBB had
admitted authorship of the text messages, he pleads for this Court to
consider those messages as inadmissible for allegedly being
unauthenticated. BBBs arguments are unbearably self-contradictory and
he cannot be allowed to take refuge under technical rules of procedure to
assail what is already apparent.
The deletion from the PPO of the directive of the RTC and the CA relative
to the award of support is not warranted. While CCC is not BBBs
biological son, he was legitimated under the latters name. Like DDD and
EEE, CCC is entitled to receive support from BBB.
BBB claims that DDD and EEE are now under his sole care and custody,
which allegedly renders moot the provision in the PPO relative to support.
BBB points out that CCC is not his biological son. Impliedly then, BBB
justifies why CCC is not entitled to receive support from him. This Court is
not persuaded.
Article 177 of the Family Code provides that "[o]nly children conceived
and born outside of wedlock of parents who, at the time of the conception
of the former, were not disqualified by any impediment to marry each
other may be legitimated." Article 178 states that "[l]egitimation shall
take place by a subsequent valid marriage between parents."
In the case at bar, the parties do not dispute the fact that BBB is not
CCCs biological father. Such being the case, it was improper to have CCC
legitimated after the celebration of BBB and AAAs marriage. Clearly
then, the legal process of legitimation was trifled with. BBB voluntarily
but falsely acknowledged CCC as his son. Article 1431 of the New Civil
Code pertinently provides:
Art. 1431. Through estoppel an admission or representation is rendered
conclusive upon the person making it, and cannot be denied or disproved
as against the person relying thereon.
At least for the purpose of resolving the instant petition, the principle of
estoppel finds application and it now bars BBB from making an assertion
the same with the end in mind of promoting the best interests of the
children.
A final note on the effectivity and violation of a PPO
The Court reminds the parties that the application for the issuance of a
PPO is not a process to be trifled with. It is only granted after notice and
hearing. Once issued, violation of its provisions shall be punishable with a
fine ranging from Five Thousand Pesos (5,000.00) to Fifty Thousand Pesos
(P50,000.00) and/or imprisonment of six (6) months.35
Section 16 of R.A. No. 9262, on the other hand, provides that "[a] PPO
shall be effective until revoked by a court upon application of the person
in whose favor the order was issued." Pending the resolution of the
instant petition, BBB claims that he and AAA had executed a MOA, upon
which basis a judgment by compromise is sought to be rendered. Atty.
Uyboco, on her part, pointed out AAAs vacillation anent the MOAs
execution. With the foregoing circumstances, the parties, wittingly or
unwittingly, have imposed upon this Court the undue burden of
speculating whether or not AAAs half-hearted acquiescence to the MOA
is tantamount to an application for the revocation of the PPO. The Court,
however, refuses to indulge the whims of either parties. The questions
raised in the instant petition for the Court to dispose of revolve around
the propriety of the PPOs issuance. The Court resolves that principal
query in the affirmative. The PPO thus stands unless AAA, categorically
and without any equivocation, files an application for its revocation.
IN VIEW OF THE FOREGOING, the petition is DENIED. The Decision dated
November 6, 2009 and Resolution dated August 3, 2010 of the Court of
Appeals in CA-G.R. CV No. 89581 are AFFIRMED. The Permanent
Protection Order, dated August 14, 2007, issued against BBB by the
Regional Trial Court of Pasig City, Branch 162STANDS except items (d),
(f), (g), (h) and (i)36 thereof. The case is hereby remanded to the trial
court for it to accordingly modify the aforecited items after determining
with dispatch the following:
(1) who between BBB and AAA shall exercise custody over the
three children;
(2) how the parties shall exercise their respective visitation
rights; and
(3) the amount and manner of providing financial support.
The Reply and Manifestation dated November 10, 2014 and December 4,
2014, respectively, are NOTED.
SO ORDERED.
BIENVENIDO L. REYES
Footnotes
* Section 44 of Republic Act No. 9262 (Anti-Violence Against Women and
Their Children Act of 2004) requires the confidentiality of all records
pertaining to cases of violence against women and their children. Per said
section, all public officers and employees are prohibited from publishing
or causing to be published in any format the name and other identifying
Republic
of
the
Philippines
SUPREME
COURT
Manila
SECOND DIVISION
G.R. No. 174461
September 11, 2013
LETICIA
I.
KUMMER,
Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
We decide the appeal tiled by petitioner Leticia I. Kummer assailing the
April 28, 2006 decision1 of the Court of Appeals (CA) in CA-G.R. CR No.
27609. The CA decision affirmed the July 27, 2000 judgment 2 of the
Regional Trial Court (RTC), Branch 4, Tuguegarao City, Cagayan, finding
the petitioner and her co-accused Freiderich Johan I. Kummer guilty
beyond reasonable doubt of the crime of homicide in Criminal Case No.
1130.
The Facts
The prosecution's evidence revealed that on June 19, 1988, between 9:00
and 10:00 p.m., Jesus Mallo, Jr., accompanied by Amiel Malana, went to
the house of the petitioner. Mallo knocked at the front door with a stone
and identified himself by saying, "Auntie, ako si Boy Mallo."
The petitioner opened the door and at this point, her son and co-accused,
Johan, using his left hand, shot Mallo twice using a gun about six (6)
inches long.3 Malana, who was with Mallo and who witnessed the
shooting, immediately ran towards the west, followed by Mallo. When
Malana turned his back, he saw the petitioner leveling and firing her long
gun at Mallo, hitting the latters back and causing him to fall flat on the
ground.4
Thereafter, the petitioner went inside the house and came out with a
flashlight. Together with her co-accused, she scoured the pathway up to
the place where Mallo was lying flat. 5 At that point, the petitioner
uttered,"Johan, patay na," in a loud voice. 6 The petitioner and her coaccused putdown the guns and the flashlight they were holding, held
Mallos feet and pulled him to about three (3) to four (4) meters away
from the house. Thereafter, they returned to the house and turned off all
the lights.7
The following morning, policeman Danilo Pelovello went to the
petitioners house and informed her that Mallo had been found dead in
front of her house. Pelovello conducted an investigation through inquiries
among the neighbors, including the petitioner, who all denied having any
knowledge of the incident.
The prosecution filed an information 8 for homicide on January 12,1989
against the petitioner and Johan, docketed as Criminal Case No.
1130.Both accused were arraigned and pleaded not guilty to the crime
charged. They waived the pre-trial, and the trial on the merits accordingly
followed.
The petitioner denied the charge and claimed in her defense that she and
her children, Johan, Melanie and Erika, were already asleep in the evening
of June 19, 1988. She claimed that they were awakened by the sound of
stones being thrown at their house, a gun report, and the banging at their
door.
Believing that the noise was caused by the members of the New Peoples
Army prevalent in their area, and sensing the possible harm that might
be inflicted on them, Johan got a .38 cal. gun from the drawer and fired it
twice outside to scare the people causing the disturbance. The noise
continued, however, with a stone hitting the window and breaking the
glass; another stone hit Melanie who was then sick. This prompted Johan
to get the shotgun placed beside the door and to fire it. The noise
thereafter stopped and they all went back to sleep.
In its judgment dated July 27, 2000, the RTC found the prosecutions
evidence persuasive based on the testimonies of prosecution
eyewitnesses Ramon Cuntapay and Malana who both testified that the
petitioner shot Mallo. The testimonial evidence, coupled by the positive
findings of gunpowder nitrates on the left hand of Johan and on the
petitioners right hand, as well as the corroborative testimony of the
other prosecution witnesses, led the RTC to find both the petitioner and
Johan guilty beyond reasonable doubt of the crime charged.
Johan, still a minor at the time of the commission of the crime, was
released on the recognizance of his father, Moises Kummer. Johan
subsequently left the country without notifying the court; hence, only the
petitioner appealed the judgment of conviction with the CA.
She contended before the CA that the RTC committed reversible errors in
its appreciation of the evidence, namely: (1) in giving credence to the
testimonial evidence of Cuntapay and of Malana despite the
discrepancies between their sworn statements and direct testimonies; (2)
in not considering the failure of the prosecution to cite the petitioners
motive in killing the victim; (3) in failing to consider that the writer of the
decision, Judge Lyliha L. Abella-Aquino, was not the judge who heard the
testimonies; and (4) in considering the paraffin test results finding the
petitioner positive for gunpowder residue.
The CA rejected the petitioners arguments and affirmed the RTC
judgment, holding that the discrepancies between the sworn statement
and the direct testimony of the witnesses do not necessarily discredit
them because the contradictions are minimal and reconcilable. The CA
also ruled that the inconsistencies are minor lapses and are therefore not
substantial. The petitioners positive identification by the eyewitnesses as
one of the assailants remained unrefuted. The CA, moreover, held that
proof of motive is only necessary when a serious doubt arises on the
identity of the accused. That the writer of the decision was not the judge
who heard the testimonies of the witnesses does not necessarily make
the decision erroneous.
transcribed stenographic notes taken during the trial as the basis for his
decision.15
Thus, the contention - that since Judge Lyliha L. Abella-Aquino was not the
one who heard the evidence and thereby did not have the opportunity to
observe the demeanor of the witnesses - must fail. It is sufficient that the
judge, in deciding the case, must base her ruling completely on the
records before her, in the way that appellate courts do when they review
the evidence of the case raised on appeal. 16 Thus, a judgment of
conviction penned by a different trial judge is not erroneous if she relied
on the records available to her.
Motive is irrelevant when the
accused has been positively identified
by an eyewitness
We agree with the CAs ruling that motive gains importance only when
the identity of the assailant is in doubt. As held in a long line of cases, the
prosecution does not need to prove the motive of the accused when the
latter has been identified as the author of the crime. 17
Once again, we point out that the petitioner was positively identified by
Malana and Cuntapay. Thus, the prosecution did not have to identify and
prove the motive for the killing. It is a matter of judicial knowledge that
persons have been killed for no apparent reason at all, and that
friendship or even relationship is no deterrent to the commission of a
crime.18
The petitioner attempts to offer the justification that the witnesses did
not really witness the shooting as their affidavits merely attested that
they heard the shooting of Mallo (and did not state that they actually
witnessed it). We find this to be a lame argument whose merit we cannot
recognize.
That Malana and Cuntapay have been eyewitnesses to the crime remains
unrefuted. They both confirmed in their direct testimony before the RTC
that they saw the petitioner fire a gun at Mallo. This was again reaffirmed by the witnesses during their cross examination. The fact that
their respective affidavits merely stated that they heard the gunshots
does not automatically foreclose the possibility that they also saw the
actual shoot in gas this was in fact what the witnesses claimed truly
happened. Besides, it has been held that the claim that "whenever a
witness discloses in his testimony in court facts which he failed to state in
his affidavit taken ante litem motam, then an inconsistency exists
between the testimony and the affidavit" is erroneous. If what were
stated in open court are but details or additional facts that serve to
supplement the declarations made in the affidavit, these statements
cannot be ruled out as inconsistent and may be considered by the court.
Thus, in light of the direct and positive identification of the petitioner as
one of the perpetrators of the crime by not one but two prosecution eye
witnesses, the failure to cite the motive of the petitioner is of no moment.
At any rate, we find it noteworthy that the lack or absence of motive for
committing the crime does not preclude conviction where there are
nitrates, experts confirm that these traces are minimal and may be
washed off with tap water, unlike the evidence nitrates left behind by
gunpowder.
Change
in
the
date
of
the
commission
of
the
crime,
where
the
disparity
is
not
great,
is
merely
a
formal
amendment,
thus,
no
arraignment is required
The petitioner claims that she was not arraigned on the amended
information for which she was convicted. The petitioners argument is
founded on the flawed understanding of the rules on amendment and
misconception on the necessity of arraignment in every case. Thus, we
do not see any merit in this claim.
Section 14, Rule 110 of the Rules of Court permits a formal amendment
of a complaint even after the plea but only if it is made with leave of
court and provided that it can be done without causing prejudice to the
rights of the accused. Section 14 provides:
Section 14. Amendment or substitution. A complaint or information may
be amended, in form or in substance, without leave of court, at any time
before the accused enters his plea. After the plea and during the trial, a
formal amendment may only be made with leave of court and when it
can be done without causing prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of
the offense charged in or excludes any accused from the complaint or
information, can be made only upon motion by the prosecutor, with
notice to the offended party and with leave of court. The court shall state
its reasons in resolving the motion and copies of its order shall be
furnished all parties, especially the offended party.
If it appears at any time before judgment that a mistake has been made
in charging the proper offense, the court shall dismiss the original
complaint or information upon the filing of a new one charging the proper
offense in accordance with section 19, Rule 119, provided the accused
would not be placed in double jeopardy. The court may require the
witnesses to give bail for their appearance at the trial. [emphasis and
underscore ours]
A mere change in the date of the commission of the crime, if the disparity
of time is not great, is more formal than substantial. Such an amendment
would not prejudice the rights of the accused since the proposed
amendment would not alter the nature of the offense.
The test as to when the rights of an accused are prejudiced by the
amendment of a complaint or information is when a defense under the
complaint or information, as it originally stood, would no longer be
available after the amendment is made, when any evidence the accused
might have would no longer be available after the amendment is made,
and when any evidence the accused might have would be inapplicable to
the complaint or information, as amended. 22
In People, et al. v. Borromeo, et al., 23 we ruled that the change of the date
of the commission of the crime from June 24, 1981 to August 28, 1981 is
a formal amendment and would not prejudice the rights of the accused
because the nature of the offense of grave coercion would not be altered.
In that case, the difference in the date was only about two months and
five days, which difference, we ruled, would neither cause substantial
prejudice nor cause surprise on the part of the accused.
It is not even necessary to state in the complaint or information the
precise time at which the offense was committed except when time is a
material ingredient of the offense. 24 The act may be alleged to have been
committed at any time as near as to the actual date at which date the
offense was committed, as the information will permit. Under the
circumstances, the precise time is not an essential ingredient of the
crime of homicide.
Having established that a change of date of the commission of a crime is
a formal amendment, we proceed to the next question of whether an
arraignment is necessary.
Arraignment is indispensable in bringing the accused to court and in
notifying him of the nature and cause of the accusations against him. The
importance of arraignment is based on the constitutional right of the
accused to be informed.25 Procedural due process requires that the
accused be arraigned so that he may be informed of the reason for his
indictment, the specific charges he is bound to face, and the
corresponding penalty that could be possibly meted against him. It is at
this stage that the accused, for the first time, is given the opportunity to
know the precise charge that confronts him. It is only imperative that he
is thus made fully aware of the possible loss of freedom, even of his life,
depending on the nature of the imputed crime.26
The need for arraignment is equally imperative in an amended
information or complaint. This however, we hastily clarify, pertains only
to substantial amendments and not to formal amendments that, by their
very nature, do not charge an offense different from that charged in the
original complaint or information; do not alter the theory of the
prosecution; do not cause any surprise and affect the line of defense; and
do not adversely affect the substantial rights of the accused, such as an
amendment in the date of the commission of the offense.
We further stress that an amendment done after the plea and during trial,
in accordance with the rules, does not call for a second plea since the
amendment is only as to form. The purpose of an arraignment, that is, to
inform the accused of the nature and cause of the accusation against
him, has already been attained when the accused was arraigned the first
time. The subsequent amendment could not have conceivably come as a
surprise to the accused simply because the amendment did not charge a
new offense nor alter the theory of the prosecution.
Applying these rules and principles to the prevailing case, the records of
the case evidently show that the amendment in the complaint was from
July 19, 1988 to June 19, 1988, or a difference of only one month. It is
clear that consistent with the rule on amendments and the jurisprudence
cited above, the change in the date of the commission of the crime of
homicide is a formal amendment - it does not change the nature of the
crime, does not affect the essence of the offense nor deprive the accused
of an opportunity to meet the new averment, and is not prejudicial to the
accused. Further, the defense under the complaint is still available after
the amendment, as this was, in fact, the same line of defenses used by
the petitioner. This is also true with respect to the pieces of evidence
presented by the petitioner. The effected amendment was of this nature
and did not need a second plea.
To sum up, we are satisfied after a review of the records of the case that
the prosecution has proven the guilt of the petitioner beyond reasonable
doubt. The constitutional presumption of innocence has been successfully
overcome.
WHEREFORE, premises considered, the appealed decision dated April 28,
2006, convicting the petitioner of the crime of homicide, is hereby
AFFIRMED. Costs against petitioner Leticia I. Kummer.
SO ORDERED.
ARTURO
D.
BRION
Associate Justice